People v. Valencia CA4/1 ( 2014 )

Filed 9/10/14 P. v. Valencia CA4/1
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062774
Plaintiff and Respondent,
v. (Super. Ct. No. SCD208824)
DAVID VALENCIA et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Diego County, John S.
Einhorn, Judge. Judgments affirmed as modified and remanded with directions.
Eric Larson, by appointment of the Court of Appeal, for Defendant and Appellant
David Valencia.
Mark D. Greenberg, by appointment of the Court of Appeal, for Defendant and
Appellant Jose Olivera Beritan.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne
G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
In May 2012 a jury convicted David Valencia and Jose Leonel Olivera-Beritan
(Beritan), who are members of the Los Palillos criminal organization that broke ties with
the Arellano-Felix Organization in Mexico and relocated to San Diego, of numerous
crimes committed between January and June 2007. Specifically, the jury returned the
following verdicts on the nine counts alleged in the amended information:
Count 1 (charged against Beritan only): Guilty of attempted
kidnapping of Arturo Martinez-Berrera (Pen. Code,1 §§ 207, subd.
(a) & 664), with true findings on allegations that (1) a principal
personally used a firearm causing great bodily injury (§ 12022.53,
subds. (d) & (e)(1)), and (2) Beritan committed the crime for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Count 2 (charged against Beritan only): Not guilty of robbery of
Ivan Lozano-Valdez, Jr. (§ 211).
Count 3 (charged against Beritan only): Guilty of first degree
murder of Lozano (§ 187, subd. (a)), with true findings on (1) an
allegation Beritan committed the crime for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)), and (2) special circumstance
allegations that Beritan committed the murder during the course of a
kidnapping (§ 190.2, subd. (a)(17)(B)), and he committed the murder
while he was an active participant in a criminal street gang and he
carried out the crime to benefit the gang (§ 190.2, subd. (a)(22)).
Count 4 (charged against both Valencia & Beritan): Guilty of
kidnapping for ransom of Cesar Uribe (§ 209, subd. (a)), with true
findings on allegations that (1) the victim suffered great bodily harm
or was intentionally confined in a manner that exposed him to a
substantial likelihood of death (§ 209, subd. (a)), and (2) defendants
1 All further statutory references will be to the Penal Code.
2
committed the crime for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
Count 5 (charged against both defendants): Guilty of first degree
murder of Uribe (§ 187, subd. (a)), with true findings on (1)
allegations that the defendants committed the crime for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)), (2) a special
circumstance allegation that Beritan (but not Valencia) committed
the murder during the course of a kidnapping (§ 190.2, subd.
(a)(17)(B)), and (3) special circumstance allegations that the
defendants committed the murder while they were active participants
in a criminal street gang and they carried out the crime to benefit the
gang (§ 190.2, subd. (a)(22)).
Count 6 (charged against both defendants): Guilty of the lesser
included offense of simple kidnapping of Marc Anthony Leon, Jr.
(Leon) (§ 207, subd. (a)), with true findings on allegations that the
defendants committed the crime for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)).
Count 7 (against both defendants): Guilty of first degree murder of
Leon (§ 187, subd. (a)), with true findings on (1) allegations that the
defendants committed the crime for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)), (2) a special circumstance allegation
that Beritan (but not Valencia) committed the murder during the
course of a kidnapping (§ 190.2, subd. (a)(17)(B)), and (3) special
circumstance allegations that the defendants committed the murder
while they were active participants in a criminal street gang and they
carried out the crime to benefit the gang (§ 190.2, subd. (a)(22)).
Count 8 (charged against Beritan only): Guilty of conspiracy to
commit kidnapping for ransom of Eduardo Gonzalez-Tostado
(Tostado) (§§ 182, subd. (a)(1) & 209, subd. (a)), with true findings
on allegations that (1) a principal personally used a firearm (§
12022.53, subds. (b) & (e)(1)), and (2) Beritan committed the crime
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Count 9 (charged against Beritan only): Guilty of kidnapping
Tostado for ransom (§ 209, subd. (a)), with true findings on
allegations that (1) the victim suffered great bodily harm or was
intentionally confined in a manner that exposed him to a substantial
likelihood of death (§ 209, subd. (a)), (2) a principal personally used
a firearm (§ 12022.53, subds. (b) & (e)(1)), and (3) Beritan
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committed the crime for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
The jury also found true special circumstance allegations that (1) as to murder
counts 3, 5 and 7, Beritan was convicted in this proceeding of more than one murder in
the first or second degree within the meaning of section 190.2, subdivision (a)(3); and (2)
as to murder counts 5 and 7, Valencia also was convicted in this proceeding of more than
one murder in the first or second degree within the meaning of section 190.2, subdivision
(a)(3).
In sum, the jury convicted Beritan of four substantive crimes: counts 1 (attempted
kidnapping of Martinez), 3 (first degree murder of Lozano), 8 (conspiracy to commit
kidnapping for ransom of Tostado), and 9 (kidnapping for ransom of Tostado); and also
convicted both Valencia and Beritan of four additional crimes: counts 4 (kidnapping for
ransom of Uribe), 5 (first degree murder of Uribe), 6 (simple kidnapping of Leon), and 7
(first degree murder of Leon).
The court sentenced Valencia to a total state prison term of two consecutive terms
of life without the possibility of parole plus a consecutive term of 15 years. The court
sentenced Beritan to a total state prison term of five consecutive terms of life without the
possibility of parole, plus a consecutive term of 25 years to life, plus a consecutive term
of 19 years.
Contentions
Valencia and Beritan separately appealed. Valencia appealed first, stating he
would join any arguments raised by Beritan that "may accrue to [his (Valencia's)]
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benefit." Valencia contended (1) his convictions of kidnapping and murdering Uribe and
Leon (counts 4−7) must be reversed because his prosecution for those four crimes was
barred by the prohibition against multiple prosecutions set forth in section 654 as a result
of his prior negotiated plea of guilty to a charge of kidnapping Tostado for ransom,
because (Valencia claims) the Tostado kidnapping and the crimes against Uribe and Leon
were "part of the same course of conduct"; (2) his trial counsel provided ineffective
assistance by failing to raise this issue in the trial court;2 and (3) his abstract of judgment
should be modified to correct certain errors (discussed, post).
Beritan later appealed, contending (1) his convictions of counts 1 (attempted
kidnapping of Martinez), 3 (murder of Lozano), and 4 through 7 (kidnappings and
murders of Uribe and Leon) must be reversed because there was insufficient evidence,
apart from the accomplice testimony of Guillermo Moreno-Garcia (Moreno) and Carlos
Pena, to connect him to the commission of those crimes; and (2) his abstract of judgment
should be modified to correct certain errors (discussed, post).
The People acknowledged Valencia's and Beritan's abstracts of judgment should
be corrected.
Unpublished Opinion and the Attorney General's Petition for Rehearing
In an unpublished opinion filed on July 15, 2014, we affirmed Valencia's and
Beritan's convictions but modified Valencia's judgment by ordering that his sentence of
2 Valencia also raised this claim of ineffective assistance of counsel in his
companion petition for writ of habeas corpus (case No. D063966), which we addressed
separately and denied.
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life without the possibility of parole for his count 7 first degree murder conviction be set
aside and that a modified sentence of 25 years to life be imposed in its place. We
modified Valencia's count 7 sentence at his urging because the Attorney General
appeared to agree with his argument. We remanded the matter with directions to correct
certain errors in the abstracts of judgment.
By order dated August 7, 2014, we granted the Attorney General's petition for
rehearing in which the Attorney General requested that this court "modify [the]
disposition to specify that, while the multiple[-]murder special circumstance on count 7 is
stricken, because a properly imposed gang[-]murder special circumstance applies to
count 7, Valencia's sentence on that count remains life without possibility of parole."
!(Pet. p. 3)! In his answer to the petition for rehearing, Valencia agreed with the Attorney
General, stating that "the appropriate disposition is to strike the multiple[-]murder special
circumstance on count [7], but that [his] sentence for count [7] would remain life without
the possibility of parole in light of the remaining gang[-murder] special circumstance."
Accordingly, we affirm Valencia's and Beritan's judgments, including Valencia's
original count 7 prison sentence of life without the possibility of parole in light of the
jury's true finding on the count 7 gang-murder special circumstance allegation.
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FACTUAL BACKGROUND3
1. Background regarding the Los Palillos cartel
A cartel is an organization that controls criminal activity in a given geographic
area. Lieutenants work for associates, and cells work for lieutenants. Members of cells
are known as soldiers. They are very poorly paid and perform the undesirable tasks.
Making money is the primary goal of a cartel. A cartel obtains money by trafficking
drugs, accepting payments from those who are involved in criminal activity, and
kidnapping for ransom.
Around 1986 a cartel known as the Arellano-Felix Organization (the AFO, also
known as the Tijuana Cartel), headed by Benjamin Arellano-Felix and his brother,
Ramon,4 took over the lucrative drug-trafficking "Tijuana corridor" by which
drugs─cocaine, heroin, marijuana, and methamphetamine─are moved from Mexico into
the United States. The AFO had a business relationship with Colombian drug lords and
controlled the supply routes from Colombia to the United States through the Tijuana
corridor. Benjamin was the leader of the AFO and made all of the command decisions.
Ramon was his enforcer and right-hand man who would intimidate rival drug traffickers
and cultivate relationships with corrupt officials. By the early 1990's thousands of people
3 Valencia and Beritan do not challenge the sufficiency of the prosecution's gang
evidence. Accordingly, we do not summarize that evidence here.
4 We sometimes refer to individuals involved in this case by their first names solely
for the sake of clarity.
7
worked for the AFO in various roles. Benjamin was arrested in March 2002, and Ramon
died in February 2002 in a shootout in Mexico.
Benjamin and Ramon's brothers, Javier Arellano-Felix and Eduardo Arellano-
Felix, took over the leadership of the AFO cartel, and its violent activities increased both
as a result of rivalries as other drug traffickers tried to take over supply routes in the
Tijuana corridor and as a result of using other methods for obtaining money. The cartel
started committing other crimes, such as kidnapping for ransom and extortion. When
Javier was arrested in Mexico in August 2006, the leadership of the AFO was transferred
to the Arellano-Felix brothers' nephew, Fernando Sanchez-Arellano.
Victor Rojas-Lopez, whose nickname was "El Palillo" (which means "the
toothpick") was the leader of an AFO cell in Tijuana. The cell called itself Los Palillos.
Another AFO cell was run by Javier's brother-in-law, Jorge Briseno-Lopez
(nicknamed "Cholo").
In 2002 Cholo and one of Victor's subordinates in the Los Palillos cell got into an
argument in a bar club over a girl, which caused friction between the two AFO cells.
Victor intervened in the argument. As a consequence of the argument, the AFO ordered
the murder of Victor.
After Victor's murder in late 2002, his brother─Jorge Rojas-Lopez, who was a
member of Victor's Los Palillos cell─fled Tijuana, and he and the cell split from the AFO
and relocated to San Diego. The cell kept its name, Los Palillos.
Los Palillos was connected to kidnappings and homicides committed in San Diego
between 2004 and 2007, including a triple murder in August 2004, the murder of a man
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nicknamed "Camaron" in August 2005, and the kidnapping of Abelino Inzunza-Uriarte
on April 13, 2006.
The victims of the triple murder were drug traffickers working for the AFO. They
were lured to a home, where they were killed and their money and drugs were stolen.
The victims' bodies were left in a vehicle that was driven from the home and parked on a
residential street in Chula Vista. Warning signs to the AFO were written in the dust on
the vehicle.
In June 2007 the members of Los Palillos included Jorge Rojas-Lopez (nicknamed
"Palillo" or "Jorgillo"); Guillermo Moreno-Garcia ("Memo"); his half-brother, Carlos
Pena ("Morro"); Jesus Gonzalez Trujillo; Juan Francisco Estrada-Gonzalez; Jose Carlos
Rangel Hernandez, Jesus Lopez-Becerra; his brother, Gerardo Gabriel Lopez-Becerra;
Jorge Moreno; Juan Laureano-Arvizu ("Chaquetin"); Ernesto Ayon; Juan Frausto-Lopez;
Ponciano Lopez-Frausto; Pedro Corrales; Eduardo Monroy ("El Arquitecto"); Nancy
Michelle Mendoza-Moreno; defendant Jose Olivera-Beritan ("Chino" or "Asere"); and
defendant David Valencia. Many of the members also used aliases, including Beritan,
whose aliases were Onel Jimenez and William Smith. Beritan was born in Havana,
Cuba.
2. Properties connected to Los Palillos
a. The Garber Avenue safe house
In 2006 Emmanuel Nwagbo owned a two-story, five-bedroom residence located
on Garber Avenue in the Paradise Hills area of San Diego. Nwagbo testified that on
October 16 that year, a man named Ignacio Peredo and a woman named Norma Berumen
9
signed a one-year agreement to rent the property. Berumen was with two children and
another man she said was her husband.
In December 2006 Berumen told Nwagbo that Peredo was her brother. Suspicious
about who was living in the residence, Nwagbo went there and met Peredo. However,
Nwagbo was not allowed inside the house.
The rent was paid regularly until January 2007, when the payments stopped.
Nwagbo called Peredo, who sent by overnight mail a rent payment in the form of a
money order for April and May 2007. The package was from a UPS store and the return
address was in the name of Onel Jimenez (Beritan's alias).
b. The Point Dume Court safe house
On May 26, 2007, a real estate agent rented a residence located on Point Dume
Court in Chula Vista to a Mexican citizen named Luis Armando Gonzalez-Perez. The
agent knew Valencia, having rented a different home in Eastlake to him on an earlier
occasion.
c. The horse ranch
In 2007 Gilberto Corral owned a 15-acre horse ranch in Imperial Beach less than
10 miles from the border. Corral leased some stables to Fabian Gonzalez, and Gonzalez
subleased stables to others, including Valencia, Uribe, and Gonzalez's brother, Adrian.5
Ernesto Ayon slept at the property Gonzalez rented from Corral and helped clean and
feed the horses.
5 Gonzalez's brother, Adrian, is not the major league baseball player with the same
name who once played with the San Diego Padres.
10
In May 2007 Gonzalez owned a Caterpillar Bobcat machine that he kept at the
horse ranch and used to clean stables, level the ground, and move heavy items. Gonzalez
allowed Ayon to drive the Bobcat to clean the stables.
3. Uncharged kidnapping of Jorge Garcia-Vasquez
Jorge Garcia-Vasquez (Vasquez or "Kilino") testified he is the brother-in-law of a
high-ranking member of the AFO. In early 2007 a woman named Nancy (Nancy
Michelle Mendoza-Moreno) approached him in a gym in Chula Vista. Vasquez began
exercising with her there and they became friends. Nancy drove a gray Chevrolet
Equinox with tinted windows.
On January 31, 2007, while Vasquez and Nancy were working out at the gym,
Nancy told Vasquez she wanted to buy some food supplements and needed his help
selecting them. Vasquez agreed. Nancy insisted that they leave Vasquez's car at the gym
and that she drive them in her car. After they left the gym, Nancy received a telephone
call. Vasquez heard Nancy tell the caller, "Oh, that's fine." Nancy then told Vasquez her
aunt had forgotten her house keys, and she needed to take the keys to her aunt's house
and leave them under the door mat.
Vasquez testified that Nancy drove them to the 805 freeway, took the 805 to the
54, exited at Reo Drive, looked in her rearview mirror with a serious and somewhat
worried expression on her face, and then stopped on a small side street where there were
no homes. A white van pulled up behind them and some men wearing military-style
clothing and looking like police officers got out of the van and approached Nancy's car.
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The men, whom Vasquez described at trial as "Mexicans," knocked on the doors of
Nancy's car and yelled "police."
Doubting the men were police officers, Vasquez locked the car doors, but Nancy
pressed the release mechanism and unlocked them. Some of the men pulled Vasquez out
of Nancy's car, but he fought back. The men punched Vasquez and one of them used a
Taser to tase his left chest. The men lifted Vasquez into the van, tied his hands behind
his back, blindfolded him, and taped his legs together. They then drove him to a house.
Vasquez learned he had been kidnapped when one of the men said he wanted $2 million.
Vasquez was held in a closet on the second floor of the house for just over three
weeks. Two men were in charge of guarding him. Vasquez testified that one was
Mexican, and the other was a foreigner with a Cuban or Venezuelan accent, and he knew
them as ''Juanito'' and "El Cubano," respectively.
4. Attempted kidnapping of Martinez (count 1, charged against Beritan only)
Arturo Martinez-Barrera (Martinez) testified that he was serving a federal prison
sentence in Virginia following his arrest there in 2007 and his conviction of conspiracy to
possess and distribute marijuana. Martinez was an independent drug trafficker who did
not work for any large organization and sold only to Americans.
In late December 2006 Martinez came to San Diego for the holidays and planned
to return home in early January. While Martinez was in San Diego, Juan Laureano-
Arvizu ("Chaquetin") told him that he (Martinez) owed Jorge Palillo ("Jorgillo") some
money for a drug debt. Martinez denied he owed any such debt and told Arvizu to
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contact Palillo because Martinez wanted to "face him" and clear everything up. Arvizu
called Palillo.
Later, around Christmas, Arvizu again told Martinez he owed money to Palillo.
At Martinez's request, Arvizu called Palillo and placed him on the speakerphone. Palillo
cursed, said "call me later," and hung up.
On January 3, 2007, Martinez was walking toward his Toyota Sequoia. Arvizu
followed him outside, started talking to him about his (Martinez's) plan to leave the next
day and suggested they go out for drinks. Martinez suggested that Arvizu get some
cocaine and ask Lourdes Hernandez to invite her sister or a friend so they could have a
party. Lourdes accompanied Arvizu, thinking they were going out for drinks. Arvizu
told Martinez to follow him in his own car. Martinez gave Arvizu $50 for the cocaine he
was going to buy.
Martinez got into his Sequoia alone. Arvizu and Lourdes got into Arvizu's
Ridgeline pickup truck. Martinez followed as Arvizu drove away.
Martinez followed Arvizu to the Briarwood apartment complex. Arvizu told
Lourdes he was going to pick up the cocaine there.
Martinez parked behind Arvizu's truck in the apartment complex parking lot and
waited for Arvizu to pick up the cocaine. As he was getting out of the car, Arvizu told
Lourdes, "If you see anything weird, leave." Arvizu got out of his pickup truck, leaving
Lourdes in the car.
Arvizu knocked on the door of one of the upstairs apartments. No one answered
the door. Arvizu waited by the door for about five minutes. Thinking something was
13
wrong, Martinez drove forward, made a U-turn, and pulled up next to the passenger's side
of Arvizu's truck, facing the way out of the apartment complex and intending to ask
Lourdes what was going on.
A white Town and Country minivan and a black station wagon then came down
the hill. The minivan parked next to Martinez and the station wagon parked in front of
him, blocking him from exiting the parking lot.
Two men exited the station wagon, and several out-of-shape Hispanic men got out
of the minivan. They were dressed in black and had police gear, including hats,
bulletproof vests, and badges hanging from their necks. The men surrounded Martinez's
car. They banged on the windows of Martinez's car with their handguns, pointed guns at
him, and yelled at him in English and Spanish to get out of the car. The men shouted
they were with the FBI.
Suspecting the men were not law enforcement officers and they were there to
kidnap him, Martinez put his car in reverse. The men started shooting at Martinez from
both sides of his car and some of the bullets struck him. Martinez then put his car in
drive and drove through an opening between the station wagon and the minivan, hitting
the minivan, and and then drove away.
Lourdes testified that after Martinez drove away from the Briarwood apartment
complex, Arvizu entered the passenger's side of his truck and Lourdes, who was driving,
started to drive away. Lourdes testified that before Martinez drove away, when Arvizu
was still outside the truck, Arvizu held up his hands and shrugged his shoulders as if to
suggest he had no idea what just occurred. As Lourdes drove by one of the buildings,
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however, Arvizu told her to slow down, and then the men from the minivan who had
assaulted Martinez jumped into the back seat of the four-door truck
Lourdes also testified that she drove them to a house in Chula Vista following
Arvizu's directions. When shown a photograph of the Garber Avenue residence at trial,
Lourdes testified she recognized the house as the one to which she, Arvizu, and the two
men wearing police vests had driven following the incident at the Briarwood apartment
complex. Lourdes also testified that "Memo" (Los Palillos member Guillermo Moreno,
whose accomplice testimony is discussed, post) was there, along with his girlfriend and
another man Lourdes did not recognize.
5. Murder of Lozano (count 3, charged against Beritan only)
In 2007 Ivan Lozano-Valdez, Jr. ("Junior") was living in Tijuana. He was a drug
user who would get into trouble. Lozano travelled to Chula Vista frequently to visit a
couple whose last name was Briseno, because the husband, Jose, had been diagnosed
with terminal cancer.
On March 23, 2007, Lozano called Jose, said he was at the border, and asked Jose
to pick him up. The Brisenos picked up Lozano and drove him to their home. They
arrived there at around 1:30 p.m. The Brisenos planned to drive Lozano back to the
border after dinner. Before dinner was prepared, Lozano received a call from a friend on
his Nextel phone. Lozano turned off the speaker so that no one could hear the
conversation. When the conversation was over, Lozano told the Brisenos he was going to
meet his friend and would be back in about 15 minutes.
15
Someone picked up Lozano 10 minutes later. Lozano did not return as planned.
After waiting for an hour and a half, Jose called Lozano. Lozano sounded agitated and
said he was on the street. Lozano's friends and family never heard from him again. His
family did not receive any calls from kidnappers demanding ransom payments in return
for his release.
Gerardo Gaxiola testified that in late March 2007, he parked his Chrysler Concord
in a large parking area near a dumpster at the apartment complex on Santa Rita Drive in
Chula Vista where he lived. In the early morning hours of March 24, Gaxiola found his
car was gone.
Later that morning George Hoff saw the Concord parked in his neighborhood in
Clairemont. A neighbor called the police, but they did not respond. In early Apri1 2007,
another neighbor called the police and reported a strange odor emanating from the car.
San Diego Police Officer Jeff Willkomm responded to the call. Lozano's
decomposing body was found in the trunk of the car. Toothpicks were strewn on and
around the body. FBI Agent Dean Giboney, the prosecution's gang expert, opined that
the toothpicks were left as a calling card and indicated that Los Palillos committed the
crime.
Steven Campman, M.D., a forensic pathologist, performed an autopsy on Lozano's
body. Dr. Campman opined that a set of paired injuries on Lozano's back appeared to
have been caused by a Taser. He also testified Lozano had other paired and crescent-
shaped injuries that were caused by a Taser; and Lozano's wrists were discolored,
indicating they had been bound prior to Lozano's death. Dr. Campman determined that
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the cause of Lozano's death was homicidal violence, including asphyxiation, and the
manner of death was homicide.
6. Kidnappings and murders of Uribe and Leon (counts 4 through 7)
a. Uribe (counts 4 & 5, charged against both Beritan and Valencia)
In May 2007 Cesar Uribe was a marijuana trafficker who lived with his wife,
Veronica Gamez, in Eastlake. Like Leon, Uribe disappeared on May 3, 2007.
Before his disappearance, Uribe had a drug-trafficking business relationship with
his close friend. Antonio Sanchez-Salas, who used an alias─Roberto Palafax─because he
was in the United States illegally. Uribe would obtain marijuana and Palafax would take
it to Cleveland and sell it to their clients, who were other drug dealers.
Uribe and Gamez met Valencia in late 1999. They all became close friends.
Valencia and his brother joined Uribe in the marijuana-trafficking business. However,
the business relationship ended in 2004, and Uribe started working with Palafax as his
partner.
Gamez testified that Valencia and Uribe remained friends for awhile, and they
both moved to Eastlake. However, their friendship ended in March 2007 due to a quarrel
over drug trafficking.
Valencia rented his home from Fabian Gonzalez's brother, Adrian. Valencia's
monthly rent was about $4,500, and he frequently was behind on his rent.
Adrian testified that in May 2007 Valencia was two months behind on his rent,
and he (Adrian) tried to collect the $9,000 owed from him. Valencia told Adrian that
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Uribe owed him $70,000, and he (Valencia) would pay the rent when he received the
money from Uribe.
On May 3, 2007, shortly before 8:30 a.m., Adrian telephoned Uribe while Uribe
was about to leave the house with Leon. Adrian asked Uribe whether he owed Valencia
money. Uribe became very angry, cursed, denied that he owed money to Valencia, said
that Valencia was lying, and told Adrian he did not know what Adrian was talking about.
Valencia then called Uribe, also before Uribe and Leon left the house that
morning, and told Uribe they needed to talk. Uribe told Valencia he was on his way out
and would call back as soon as he was in the car. Uribe, accompanied by Leon, then left
the house for the last time.
Later that day, Palafax, who was in Cleveland, received a call from a man he did
not know and learned that Uribe had been abducted. Palafax testified that the man called
from Uribe's Nextel phone using the "push to talk" feature. The man told Palafax, in
Spanish, that they knew he was on the East Coast, they had his friend (Uribe) and nothing
was going to happen, but it was "not a game" and they would call him again in 30
minutes with instructions. The man called back and demanded half a million dollars.
When Palafax told the man "We ain't got that kind of money," the man told Palafax he
knew everything about Palafax and his family, and then threatened to kill Uribe if Palafax
called the police. When Palafax asked the man about Leon, he said they also had the
"stupid homey" with them.
Palafax called Uribe's wife, Gamez, to let her know what was going on. Palafax
flew to San Diego.
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Palafax, Gamez, and Uribe's family began raising money to secure Uribe's release.
Eventually, they raised about $50,000.
On May 10, the man who had spoken to Palafax called him again to arrange the
ransom drop. The ransom money was delivered to two armed men at the Briarwood
apartment complex.
Later, one of the kidnappers called Palafax again and told him that $50,000 was a
"joke" and they would give him a week to come up with more money. Uribe's brother-in-
law agreed to do the second ransom drop. Following instructions, he delivered the
ransom money to a specified location in National City. No one ever heard from Uribe
again. On May 24, 2007, Uribe's family called the police.
b. Leon (counts 6 & 7, charged against both Beritan and Valencia)
In May 2007 Leon lived with his mother in Santee. Cesar Uribe was a friend of
Leon's On May 3, 2007, when Leon's mother returned from work at 5:00 p.m., Leon was
gone and he never returned home. No one called Leon's family with a ransom demand.
7. Kidnapping of Tostado (counts 8 & 9, charged against Beritan only)
In May 2007 Eduardo Gonzalez-Tostado, a wealthy Mexican-born businessman,
was living with his wife and daughter in Chula Vista. Tostado testified that his residence
was in a gated community that required entry of a code in order to gain access. When
Tostado and his family moved in around May 2005, he had some remodeling work done
to the home. Los Palillos member Eduardo Monroy ("El Arquitecto") did the work.
Tostado gave Monroy the gate access code to allow him to do the work.
19
Tostado testified that he and Valencia had been friends. However, Tostado had a
falling out with Valencia in 2003 or 2004, and they no longer communicated with one
another.
One evening in May 2007, when Tostado returned home from work, he found a
note in Spanish on his doorstep with a name and a phone number. The note said to call
"Roberto" regarding an urgent matter. Although Tostado did not know the man,
Tostado's cousin, Sergio Tostado, recognized him as Arvizu ("Chaquetin"), who was a
Los Palillos member.
Afraid he might be the potential victim of a kidnapping, Tostado told his wife to
contact the FBI if anything happened to him. Tostado called the number written on the
piece of paper, a man (Arvizu) answered the phone, and identified himself as Roberto.
Tostado asked Arvizu to describe the nature of the urgent matter. Arvizu said he needed
to talk to Tostado in person because "they" were trying to kidnap him (Tostado). Tostado
asked Arvizu who he meant by "they," and Arvizu responded that a dangerous "group of
people" were doing to do it. Arvizu told Tostado that if he gave Arvizu $50,000, Arvizu
would let him know who "they" were. Arvizu asked Tostado to meet him in a public
place and bring cash, and Tostado told Arvizu he would call him back.
Tostado called Arvizu later from his restaurant in Tijuana. Tostado told Arvizu he
knew his name was "Chaquetin" and offered him $5,000 if he would come to the
restaurant and provide him with the information. During the conversation, Arvizu told
him that Monroy had given the kidnappers the gate access code to Tostado's home.
20
Around the same time period, a mutual friend of Tostado and Valencia's told
Tostado that Valencia was trying to reach him (Tostado). Tostado used the friend's
phone to call Valencia, and they agreed to meet for coffee. While the two had coffee
together, Valencia told Tostado he needed to buy a pickup truck and a car and gave
Tostado a cashier's check for $40,000.
In early June 2007 Valencia and Tostado went to look at cars, and Tostado
purchased two vehicles at an auction the next day. Valencia made arrangements to meet
in a couple of days with Tostado at a Starbucks in Chula Vista to pay the balance he
owed on the vehicles and arrange for their delivery.
On June 8, 2007, when Tostado and Valencia met at the Starbucks, Valencia said
he was expecting a friend who wanted to sell Tostado a nice BMW. That person never
arrived. Instead, an attractive Mexican woman came to the table and talked to Valencia
in Spanish. Valencia introduced her as his friend, Nancy. Shortly thereafter, Nancy
spoke with Valencia again and left.
As Nancy drove away, she telephoned Valencia. Valencia then told Tostado that
Nancy liked him and wanted to go out with him for drinks. Tostado called Nancy and
made plans to pick her up at a coffee shop. When he got there, Nancy was waiting
outside. She told him she wanted to go to a certain bar in Tijuana, Nancy asked Tostado
to follow her in his car.
Tostado testified that he followed Nancy to a house (the Point Dume Court safe
house) at the end of a street in a cul-de-sac. Nancy went inside the house and told
Tostado when she returned that her aunt was not home, and they could have drinks in the
21
house. Tostado agreed. He told her he had to leave, but would return in a few minutes.
When he returned, Nancy let him in.
All of a sudden, three men wearing ski masks and police gear ran towards Tostado
from the hall. They were armed with rifles. Two of the men grabbed Tostado and the
third struck him in the face and stomach with a rifle. Tostado felt a lot of Taser strikes on
his back, and he fell to the floor. The men continued to kick and hit him, and he passed
out.
Tostado testified that when he regained consciousness, he was face down with his
legs and hands cuffed behind him and someone sitting on his back. Tostado, who was
blindfolded, heard Nancy say she was leaving. Another man told her to take Tostado's
car.
Tostado testified the three kidnappers referred to themselves as Boss 1, Boss 2,
and Boss 3. Boss 1 did most of the talking. Boss 1 told Tostado not to do anything
stupid, they wanted money, and then they would let him go. He asked Tostado for $2 or
$3 million dollars. Tostado said he did not have that much money, and Boss 1 responded
that he had investigated Tostado, looked at his home and his businesses, and knew he
could come up with the money. Boss 1 added that the "Architect" (Monroy) had given
them the gate access code to Tostado's home.
Boss 1 told Tostado they had kidnapped Kilino (Vasquez, the brother-in-law of a
high-ranking AFO member) and indicated they had killed Junior (Lozano). Boss 1 said
that if Tostado came up with $1 million, "they would let him go. Boss 1 added that he
was angry with the AFO because they killed his brother, El Palillo. He accused Tostado
22
of being friends with the AFO. Tostado told Boss I that he (Tostado) had nothing to do
with his brother.
Tostado indicated at trial that he learned the nicknames of three of the kidnappers.
Tio (Raul Rojas-Gamez) was the cook who told him not to "do anything stupid" or they
would kill him. Morro (Pena) and Asere (Beritan) were in charge of the house and were
responsible for guarding Tostado. Pena guarded Tostado during the day and Beritan
guarded him at night.
Tostado also testified that Beritan had a Cuban accent and was constantly using
his laptop computer. Beritan told Tostado he had been a truck driver in Cuba before he
moved to Miami, Florida. Beritan also told Tostado he had been driving a Chevy
Equinox and conducting surveillance outside Tostado's house at the time of Tostado's
kidnapping.
Tostado testified he expressed concern about his safety, noting he had seen
Nancy's face. Tostado promised Beritan that if they let him go, he would not identify her.
Beritan responded by telling Tostado they had taken Kilino (Vasquez), who had been
there for a month, had paid the ransom, and had been released. Beritan assured Tostado
he would have "no problem" because Vasquez was not killed even though he, too, had
seen Nancy.
FBI Special Agent Lauren Wood testified that, during her investigation, she was
able to identify Boss 1 as Jorge Rojas-Lopez (Rojas). A complex, multiagency operation
was set up to track and apprehend the kidnappers.
23
By June 15, $193,000 in ransom money had been raised. That day, one of the
kidnappers called Tostado's cousin, Sergio, and told him to await further instructions.
Also that same day, Sergio took the money to the FBI office, where some of the bills
were marked and photographed, and they were all placed in a briefcase containing a
tracking device. Wiretap warrants were obtained.
Tostado's wife notified Agent Wood that a ransom drop was planned for June 16.
In the afternoon on June 16, Agent Wood and two other agents met with Tostado's wife
and Sergio, and the agents gave Sergio the briefcase containing the marked money and
told him to follow the kidnapper's instructions. While Sergio was with the agents, one of
the kidnappers contacted him and gave him instructions about the ransom drop.
Law enforcement agents had placed a digital body recorder on Sergio so they
could listen to anything he heard or said, including anything said during calls from the
kidnappers, and thereby follow him during the ransom drop, but the audio did not work
and they lost his trail. Using the beacon signal in the briefcase of money, agents tracked
the briefcase to a Mitsubishi Lancer with Baja license plates. Through surveillance, the
police determined that the Lancer was being driven by a lone Hispanic male, who picked
up a second man. The men, later identified as Juan Estrada-Gonzalez (Estrada) (who was
the driver) and Rojas, drove to the Point Dume Court safe house and entered the
residence.
Rojas and Estrada were arrested as they drove the Lancer away from the Point
Dume Court residence. The briefcase with the ransom money was in the car. Tio (Raul
Rojas-Gamez) was arrested driving away in a separate vehicle.
24
After awhile, agents outside the house announced their presence. Pena ran
outside. Tostado testified that Beritan removed Tostado's blindfold and handcuffs, put
one of the handcuffs on himself, and placed the blindfold around his head to cover his
eyes. Tostado opened the front door and walked outside.
Beritan came out of the Point Dume Court safe house and pretended to be a
victim. Tostado informed the agents Beritan was one of the kidnappers, not a victim.
Beritan was arrested. Pena was found hiding in a canyon and was also arrested.
At trial, Tostado identified Beritan as Asere and Pena as Morro.
8. Investigation
During the investigation, Tostado was able to identify Boss 1 and Boss 2 by their
voices. Boss 1 was Rojas and Boss 2 was Estrada.
Utilities for the Point Dume Court residence were in the name of Oswaldo Barrera,
an alias for Gerardo Lopez-Becerra. A Chevrolet Equinox was in the garage, and Pena's
Ford Ranger was parked near the house. A receipt for caustic soda dated May 20 was in
the truck.
A search was conducted inside the Point Dume Court residence. Bags of caustic
soda were found under the kitchen sink. A couple of boxes of muriatic acid were found
in the home. Officers also found several weapons, including AK-47-style rifles, a
semiautomatic handgun, and a Taser. Also found were police vests and gear, including a
ballistic vest and hats with the words "police" and "FBI" on them.
A black computer-type carrying case or bag and a Sony laptop were found in the
house. The contents of the laptop bag included (1) several items indicating the bag
25
belonged to Beritan, including an immigration document in the name of "Jose Leonel
Beritan-Olivera" from Cuba, a photocopy of the front of a Social Security card in the
name of "Jose Leonel Beritan-Olivera," and a photocopy of a Florida driver's license in
the name of Jose L. Beritan; and (2) a small blue address book containing Tostado's
personal information and credit card numbers.
In October 2009, based on information provided by Pena, a law enforcement team
went to the horse ranch with a search warrant. They found the liquefied remains of Leon
and Uribe buried in the ground in barrels.
9. Accomplice testimony6
a. Moreno's accomplice testimony
In August 2008 Moreno entered into a cooperation agreement with the district
attorney's office under which he would provide information regarding several homicides,
kidnappings, and robberies committed by members of Los Palillos. Moreno agreed to
testify truthfully in several Los Palillos cases, including this one, in return for a prison
sentence of between 25 years and 33 years eight months, to be determined by the court.
Moreno testified he had worked in Tijuana for Victor Rojas-Lopez (El Palillo),
who (as already noted) was the leader of an AFO cell in Tijuana. After Victor was
6 As the following accomplice testimony is primarily relevant to Beritan's claim his
convictions of counts 1 and 3 through 7 are not supported by sufficient corroborative
evidence, our summary of the testimony is brief and primarily focused on the portions of
the testimony that pertain to Beritan's role in the commission of the various crimes
involved in this case.
26
murdered, Moreno started selling drugs for Victor's brother, Jorge Rojas-Lopez, who
wanted to "get revenge" by targeting AFO members for murdering his brother.
Moreno indicated that Los Palillos rented safe houses in the San Diego area to
facilitate the crimes they planned to commit against AFO members. Specifically, Los
Palillos rented the Garber Avenue and Point Dume Court residences as safe houses.
Moreno testified he was living alone in the Briarwood apartment complex when
Beritan moved to San Diego. Beritan moved into the Garber Avenue safe house, as did
Moreno's brother, Pena.
Moreno also testified he had seen a false Florida identification card that Beritan
used. The card had a photograph of Beritan, but the name on the card was Onel Jimenez.
Moreno spoke to Beritan and a few other members of Los Palillos about making
money by kidnapping AFO members for ransom. Moreno testified that Beritan had
participated in a kidnapping for ransom before he moved to San Diego, and Beritan
expressed interest in making money this way. Thereafter, Los Palillos started kidnapping
AFO members for ransom.
i. Kidnapping of Balitas
The first victim was a man named Balitas. Moreno testified that Balitas's father
worked for the AFO. Beritan, Moreno, Jorge Rojas-Lopez, and other Los Palillos
members participated in the kidnapping. During the kidnapping, Beritan drove a car and
served as a lookout. Following his abduction, Balitas was handcuffed, blindfolded, and
held captive at the Garber Avenue safe house. Beritan guarded Balitas at night, and
Moreno guarded him during the day. Ransom was paid and Balitas was released.
27
ii. Kidnapping of Vasquez
The second victim was Vasquez ("Kilino"), whose wife was related to a financial
adviser for the AFO. Some Los Palillos members arranged for Nancy Mendoza-Moreno
to flirt with Vasquez at a gym, get him to go out with her, and drive him to a certain
location. They would abduct him there by pretending to be law enforcement officials,
"arresting" him, and then taking him to the Garber Avenue safe house.
On the day of the kidnapping, Beritan remained at the Garber Avenue house.
Nancy lured Vasquez as planned and drove him to the location in a Chevrolet Equinox
that later was sold to Beritan. A group of Los Palillos members, disguised as police
officers, approached Nancy's vehicle in a van, directed her to pull over, forced Vasquez
into the van, and took him to the Garber Avenue safe house where they held him captive.
Beritan and Moreno guarded Vasquez at the Garber Avenue safe house while he
was held captive there. Moreno guarded him during the daytime, and Beritan guarded
him at night.
Moreno testified that he and other Los Palillos members sometimes openly
referred to Beritan as "Cuba" or "El Cubano" at the Garber Avenue safe house while
Vasquez was held captive there. Ransom was paid and Vasquez was released. When
Moreno arrived, Beritan, who was living there, was present with other members of Los
Palillos.
Moreno testified that he and the others were told they were waiting for a call from
Arvizu ("Chaquetin"), who had set up the victim─Martinez─by telling him he (Arvizu)
had a buyer for some cocaine. The plan was to kidnap Martinez, take whatever drugs he
28
had, and hold him captive at the Garber Avenue safe house. Specifically, Moreno and
three others would be in a stolen white Dodge Caravan, and Beritan would take a separate
car and act as a lookout. Arvizu would lure Martinez to the Briarwood apartment
complex, where the group would get out of the Caravan and "arrest" him. The group
donned their law enforcement uniforms and put police lights on the Caravan.
When Arvizu called, most of the group drove in the Caravan to the Briarwood
apartment complex, and Beritan parked up a nearby hill. With its police lights turned on,
the Caravan stopped in front of Martinez's SUV. Moreno and the others in the Caravan
got out and ran towards the SUV, and Moreno tried to "arrest" Martinez by pounding on
the passenger window with a gun. Moreno's gun fired, and one of his cohorts fired his
weapon. One of the Los Palillos members tried to block Martinez's car by putting the
Caravan in reverse. Beritan drove down the hill and also tried to block Martinez in.
Martinez drove forward, hitting both the Caravan and Beritan's car, and drove away.
After Martinez escaped, the would-be kidnappers returned to the Garber Avenue safe
house.
iv. Lozano murder
Regarding the Lozano murder, Moreno testified that after he learned Lozano
worked for the AFO, he (Moreno), Beritan, and other Los Palillos members met at the
Garber Avenue safe house and discussed a plan to kidnap or rob Lozano. Beritan was
still living there.
Arvizu asked Moreno to run an errand. When Moreno returned to the Garber
Avenue house, Lozano was in the dining room with his hands cuffed behind his back.
29
Later, after Lozano's mouth and legs were taped, Beritan and other Los Palillos members
kicked him as Jesus Gonzalez-Trujillo strangled him to death with a belt.
After Lozano was dead, Beritan and Arvizu left to steal a car for the disposal of
the body. They returned half an hour later with a gold Chrysler sedan. Beritan and
Arvizu told Moreno they stole the car from the Pinnacle apartments on Santa Rita Drive
in Chula Vista where they had found it parked next to a dumpster.
Moreno testified the entire group dragged Lozano's body to the Chrysler and
placed it in the trunk. Beritan handed Jorge Rojas-Lopez a container of toothpicks.
Rojas opened it and poured toothpicks on the body. Arvizu got in the Chrysler while the
others got in a another vehicle. They abandoned the Chrysler in a residential
neighborhood in the Clairemont area.
v. Kidnappings and murders of Uribe and Leon (Uribe/Leon crimes)
Regarding the kidnapping and murder of Uribe and Leon, Moreno testified that
Valencia lured the victims to the Garber Avenue safe house on the pretext that Valencia
would bring someone there who would sell some marijuana. After they arrived at the
house, Uribe and Leon were abducted, handcuffed and blindfolded, and held captive
upstairs. Beritan, who was still living at the Garber Avenue safe house, helped to guard
them during their captivity there.
Beritan was present when Uribe and Leon were murdered. Jesus Gonzalez-
Trujillo first murdered Leon by strangling him as he was being kicked. Some of the Los
Palillos members in the house dragged Leon's naked body over to a 55-gallon metal
barrel containing muriatic acid and put the body head first into it. Later, Uribe was
30
strangled to death as he was being kicked. His body was put head first into a second
barrel containing muriatic acid.
Moreno testified that Beritan was present when the barrels were loaded on Pena's
Ford Ranger truck. The barrels were driven to the horse ranch where they were
"dumped."
Moreno later had a falling out with Los Palillos and separated from the group.
vi. Tostado kidnapping
Moreno testified that he was not involved in Tostado's kidnapping, and he never
went to the Point Dume Court safe house.
b. Accomplice testimony of Carlos Pena
In late 2010 Pena, Moreno's brother, entered into a cooperation agreement with the
district attorney's office whereby he agreed to give truthful testimony in return for use
immunity and a sentence ranging from 26 years eight months to 39 years eight months.
Pena testified that he joined Los Palillos in 2006. Los Palillos rented safe houses,
and he would hang out in them with the other members of Los Palillos. Los Palillos
rented the Garber Avenue safe house in October 2006, and Pena lived there with Beritan
from that time until Los Palillos abandoned that safe house.
Pena's accomplice testimony was generally consistent with Moreno's regarding the
kidnapping of Balitas, the kidnapping of Vasquez, the attempted kidnapping of Martinez,
the murder of Lozano, and the kidnapping and murders of Uribe and Leon.
31
i. Kidnapping of Balitas
Regarding the kidnapping of Balitas, as pertinent here, Pena testified that he and
Beritan helped to guard Balitas while he was held captive at the Garber Avenue safe
house. During that time, both he (Pena) and Beritan lived at the Garber Avenue safe
house.
ii. Kidnapping of Vasquez
Regarding the kidnapping of Vasquez, Pena testified he learned before the
abduction that a woman named Nancy (Nancy Michelle Mendoza-Moreno) went to a
certain gym to establish a relationship with Vasquez. Pena's role in the kidnapping was
to pick up Nancy after Vasquez was abducted from the Equinox she was driving, and
then drive her to the border. That Equinox was later sold to Beritan and confiscated
during the FBI raid at the Point Dume Court safe house on June 16, 2007. Pena testified
that he and Beritan guarded Vasquez while he was held captive at the Garber Avenue
safe house.
iii. Attempted kidnapping of Martinez
Regarding the attempted kidnapping of Martinez, Pena testified that he, Beritan,
and other Los Palillos members met at the Garber Avenue safe house to plan the
kidnapping for ransom.
iv. Lozano murder
Regarding the Lozano murder at the Garber Avenue safe house, Moreno testified
that Beritan was present in the house when Lozano was still alive. Pena heard someone
telling Lozano they knew he was with the AFO, and he had run into Los Palillos. While
32
Lozano was alive, Pena went outside to act as a lookout. When he came back inside,
Lozano was face down on the floor, dead.
v. Uribe/Leon crimes
Pena provided some missing details regarding the Uribe/Leon murders and
explained his own role in the crimes. As pertinent here Pena testified that while the
victims were held captive at the Garber Avenue safe house, he, Beritan, Moreno, and
another Los Palillos member took turns guarding them. Beritan usually guarded them at
night. During that time, both Pena and Beritan lived at the Garber Avenue safe house.
Pena also testified that he and Beritan bought masks to protect against fumes that
would be coming from the barrels, and they also purchased fans, large plastic trash bags
to cover the openings of the lidless barrels , and charcoal for the barbeque. Beritan and
Valencia were present when Uribe was strangled. Pena drove the barrels containing
Leon's and Uribe 's remains to the horse ranch in the bed of his truck. Pena backed his
truck up to a hole in the ground that was five to seven feet deep, and a Bobcat machine
was used to take the barrels out of the truck. The last time Pena saw the barrels they were
on the Bobcat.
Pena also testified that later, a week after he drove the barrels to the ranch, he and
Beritan cleaned up the Garber Avenue safe house and washed the downstairs floor with a
disinfectant.
33
vi. Tostado kidnapping
Pena testified he learned in June 2007 that Los Palillos had a new safe house─the
Point Dume Court safe house. That month he moved into the new safe house. He also
learned about Los Palillos's plans to kidnap Tostado.
On June 8, 2007, the day Tostado was kidnapped, Pena drove up and down the
street acting as a lookout. While he was driving around as a lookout, Pena kept in phone
contact with Beritan.
Pena testified that while Tostado was held captive at the Point Dume Court safe
house, he (Pena), Beritan, and another member of Los Palillos guarded Tostado.
On June 16, the FBI raided the Point Dume Court safe house and arrested Pena.
Pena testified that Beritan took the "bands" off Tostado and put them on himself.
Beritan's Equinox was parked in the garage at the time of the raid.
DISCUSSION
I. SECTION 654 PROHIBITION OF MULTIPLE PROSECUTIONS (COUNTS 4−7)
Valencia claims his convictions of kidnapping and murdering Uribe and Leon
(counts 4−7, hereafter the Uribe/Leon crimes) must be reversed because prosecuting him
in this case for those four crimes violated the prohibition of multiple prosecutions under
section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) because (1) he
pleaded guilty to a charge of kidnapping Tostado for ransom before he was indicted in
this case, and (2) the Tostado kidnapping and the Uribe/Leon crimes were "part of the
same course of conduct." Valencia also contends his trial counsel provided ineffective
34
assistance by failing to assert in the trial court that section 654 barred his prosecution for
the Uribe/Leon crimes charged in counts 4 through 7. We reject these contentions.
A. Background
On June 15, 2009, before he was indicted in this case in August 2009, Valencia
pleaded guilty in People v. Valencia (Super. Ct. San Diego County, 2009, No.
SCD207302) to aiding and abetting the kidnapping for ransom of Tostado on June 8,
2007, and admitted he committed that offense in furtherance of the Los Palillos street
gang. Valencia was sentenced to 15 years in state prison for his conviction of that
offense.
B. Applicable Legal Principles
Section 654, subdivision (a) provides in part that when an "act or omission . . . is
punishable in different ways by different provisions of law," an "acquittal or conviction
and sentence under any one bars a prosecution for the same act or omission under any
other." This provision "bars multiple prosecutions for the same act or omission where the
defendant has already been tried and acquitted, or convicted and sentenced." (People v.
Davis (2005) 36 Cal.4th 510, 557 (Davis).)
The leading case on the section 654 bar against multiple prosecutions is Kellett,
supra, 63 Cal.2d 822. (Davis, supra, 36 Cal.4th at p. 557.) In Kellett, the defendant was
initially charged with the misdemeanor offense of exhibiting a firearm in a threatening
manner (§ 417), and he was charged one month later with the felony offense of being a
felon in possession of a firearm (former § 12021). (Kellett, at p. 824.) Both charges
arose out of the defendant's standing on a public sidewalk while holding a pistol. (Ibid.)
35
Two months after he was charged with the felony, he pleaded guilty to the misdemeanor
charge and was sentenced for that offense. (Ibid.) The defendant then moved for
dismissal of the felony charge, arguing it was barred by section 654, and the trial court
denied his motion. (Kellett, at p. 824.) The California Supreme Court held that
prosecution of the felony charge was barred under section 654, stating: "When, as here,
the prosecution is or should be aware of more than one offense in which the same act or
course of conduct plays a significant part, all such offenses must be prosecuted in a
single proceeding unless joinder is prohibited or severance permitted for good cause.
Failure to unite all such offenses will result in a bar to subsequent prosecution of any
offense omitted if the initial proceedings culminate in either acquittal or conviction and
sentence." (Kellett, at p. 827, italics added.) The Kellett court explained that such a bar
is needed to avoid "needless harassment" of defendants and "waste of public funds."
(Ibid.; see also Davis, 36 Cal.4th at p. 557 ["This preclusion is primarily 'a procedural
safeguard against harassment.'"].)
Thus, under the Kellett rule, the section 654 prohibition of multiple prosecutions
"applies only where 'the prosecution is or should be aware of more than one offense in
which the same act or course of conduct plays a significant part.'" (People v. Valli (2010)
187 Cal.App.4th 786, 796 (Valli), quoting Kellett, supra, 63 Cal.2d at p. 827.)
However, the section 654 prohibition of multiple prosecutions does not apply
under the Kellett rule when "[t]he crimes were committed at different locations, at
different times, against different victims, and with different objectives." (People v. Ward
(1973) 30 Cal.App.3d 130, 136; see also People v. Cuevas (1996) 51 Cal.App.4th 620,
36
624 ["Kellett does not require, nor do the cases construing it, that offenses committed at
different times and at different places must be prosecuted in a single proceeding."])
In deciding whether the same act or course of conduct plays a significant part in
more than one offense, thereby triggering application of the section 654 prohibition of
multiple prosecutions under the Kellett rule, "[w]hat matters is . . . the totality of the facts,
examined in light of the legislative goals of sections 654 and 954[7] as explained in
Kellett." (People v. Flint (1975) 51 Cal.App.3d 333, 336 (Flint)). "More specifically, if
the evidence needed to prove one offense necessarily supplies proof of the other, . . . the
two offenses must be prosecuted together, in the interests of preventing needless
harassment and waste of public funds." (People v. Hurtado (1977) 67 Cal.App.3d 633,
636 (Hurtado).)
However, in determining whether the section 654 prohibition of multiple
prosecutions applies under the Kellett rule, "[t]he evidentiary test of Flint and Hurtado
requires more than a trivial overlap of the evidence. Simply using facts from the first
prosecution in the subsequent prosecution does not trigger application of Kellett." (Valli,
supra, 187 Cal.App.4th at p. 799.) Thus, successive prosecutions are not barred when
"[d]ifferent evidentiary pictures are required . . . [or] [d]ifferent witnesses would testify to
the events." (Ibid.)
7 Section 954 provides in part: "An accusatory pleading may charge two or more
different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses,
under separate counts, and if two or more accusatory pleadings are filed in such cases in
the same court, the court may order them to be consolidated."
37
1. Standard of review
"On appeal, we review factual determinations under the deferential substantial
evidence test, viewing the evidence in the light most favorable to the People. [Citation.]
We review de novo the legal question of whether section 654 applies." (Valli, supra, 187
Cal.App.4th at p. 794.)
C. Analysis
Valencia has failed to meet his burden of showing section 654 barred his
prosecution under the Kellett rule for the Uribe/Leon crimes charged in counts 4 through
7 following his conviction and sentencing for aiding and abetting the Tostado kidnapping
based on his guilty plea. As already discussed, the section 654 prohibition of multiple
prosecutions does not apply when "[t]he crimes were committed at different locations, at
different times, against different victims, and with different objectives." (People v. Ward,
supra, 30 Cal.App.3d at p. 136, italics added.)
Here, the record shows the Uribe/Leon crimes and the Tostado kidnapping were
committed at different locations, at different times, against different victims, and with
different objectives. The Uribe/Leon crimes and the Tostado kidnapping obviously
involved different victims. Uribe and Leon were kidnapped in early May 2007, they
were held captive at the Garber Avenue residence where they were murdered, and their
remains were buried in barrels at the horse ranch. The principal motive underlying the
crimes appeared to be retribution for nonpayment of a $70,000 debt allegedly owed to
Valencia. Tostado, however, was kidnapped in early June of that year, weeks after Uribe
and Leon were murdered, and held captive at the Point Dume Court safe house until he
38
was rescued. Tostado was targeted because he was perceived to be an influential member
of the AFO.
Thus, viewing the evidence in the light most favorable to the prosecution, as we
must (Valli, supra, 187 Cal.App.4th at p. 794), we conclude Valencia has failed to
demonstrate "the same act or course of conduct plays a significant part" (Kellett, supra,
63 Cal.2d at p. 827) in both the Tostado kidnapping and the Uribe/Leon crimes, and thus
he has not established his prosecution for the Uribe/Leon crimes was barred under section
654 and the Kellett rule.
We further conclude that because Valencia's prosecution for the Uribe/Leon
crimes was not barred under the section 654 prohibition of multiples prosecutions, his
counsel did not provide ineffective assistance by failing to assert in the trial court that
section 654 barred his prosecution for those crimes.
II. SUFFICIENCY OF THE EVIDENCE (CORROBORATION
OF MORENO'S AND PENA'S ACCOMPLICE TESTIMONY)
Beritan contends his convictions of counts 1 (attempted kidnapping of Martinez),
3 (murder of Lozano), and 4 through 7 (kidnappings and murders of Uribe and Leon)
must be reversed because there was insufficient evidence, apart from the accomplice
testimony of Moreno and Pena, to connect him to the commission of any of those
crimes.8 We reject this contention.
8 In his appellant's opening brief, which he filed before Beritan filed his, Valencia
attempts to join in Beritan's arguments by summarily stating he "joins in any arguments
raised by [Beritan] which may accrue to Valencia's benefit." Joinder is broadly permitted
(Cal. Rules of Court, rule 8.200(a)(5)), "but each appellant has the burden of
39
A. Applicable Legal Principles
When assessing a challenge to the sufficiency of the evidence, we apply the
substantial evidence standard of review, under which we view the evidence "in the light
most favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."
(People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307,
319.) "The same standard of review applies to cases in which the prosecution relies
mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
Generally, the uncorroborated testimony of a single witness is sufficient to sustain
a conviction or true finding on an enhancement allegation "unless the testimony is
physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284,
296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate
the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.
Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the
demonstrating error and prejudice." (People v. Nero (2010) 181 Cal.App.4th 504, 510,
fn. 11; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["Because of the
need to consider the particulars of the given case, rather than the type of error, the
appellant bears the duty of spelling out in his brief exactly how the error caused a
miscarriage of justice."].) Here, Valencia did not supply any argument on the issue of
accomplice testimony corroboration as it applies to his unique circumstances. To the
extent Valencia's cursory joinder is an attempt to challenge the sufficiency of the
evidence corroborating the accomplice testimony of Moreno and Pena as that testimony
pertains to him, his reliance solely on Beritan's arguments and reasoning is insufficient to
satisfy his burden on appeal. (See Nero, at p. 510, fn. 11.) Accordingly, we consider this
issue only as to Beritan.
40
testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34
Cal.4th 1149, 1181.)
1. Corroboration of accomplice testimony
However, section 1111 prohibits a conviction based "upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense." (§ 1111, italics added; see People v.
McDermott (2002) 28 Cal.4th 946, 985-986 ["A conviction can be based on an
accomplice's testimony only if other evidence tending to connect the defendant with the
commission of the offense corroborates that testimony."].)
"The corroboration required of accomplice testimony . . . need only connect the
defendant to the crime sufficiently that we may conclude the jury reasonably could have
been satisfied that the accomplice was telling the truth." (People v. Letner and Tobin
(2010) 50 Cal.4th 99, 185-186.) "[T]he corroborating evidence may be circumstantial, of
little weight by itself, and related merely to one part of the accomplice's testimony." (Id.
at p. 186, italics added; see also People v. Abilez (2007) 41 Cal.4th 472, 505 [such
corroborative evidence may be slight or entirely circumstantial and entitled to little
consideration when standing alone, and need not by itself establish every element of the
crime]; People v. Trujillo (1948) 32 Cal.2d 105, 111 ["If [the accomplice's] testimony
could be completely proven by other evidence, there would be no occasion to offer him
as a witness."].)
The trier of fact's finding on the issue of corroboration may not be disturbed on
appeal unless the corroborative evidence should not have been admitted or does not
41
reasonably tend to connect the defendant with the commission of the crime. (People v.
Szeto (1981) 29 Cal.3d 20, 25).
B. Analysis
As noted, Beritan seeks reversal of six of his eight convictions in this case─counts
1 (attempted kidnapping of Martinez), 3 (murder of Lozano), and 4 through 7
(kidnappings and murders of Uribe and Leon)─based on his claim there is insufficient
independent evidence to corroborate the accomplice testimony of Moreno and Pena as it
pertains to him.9 As discussed in the factual background, ante, the prosecution's case
was based in part on the accomplice testimony of both Moreno and Pena.
Beritan first asserts "there was no witness, apart from Moreno and Pena, who
identified [him] at all" or who testified he "ha[d] any specific role in the commission of
the crimes" committed against Martinez, Lozano, Uribe and Leon. As Beritan appears to
acknowledge, corroborative evidence need not consist of direct eyewitness testimony; it
may be entirely circumstantial. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186.)
Specifically, Beritan asserts, and we agree, that to be sufficient for purposes of section
1111 the corroborative evidence need only provide a "thin circumstantial nexus" that
tends to connect him with the commission of the crimes with which he was charged.
Beritan contends, however, that "[t]here is nothing even circumstantially
suggestive from any of the witnesses" to show he had a role in the commission of any of
9 Beritan does not challenge on this ground his other two convictions in this case:
conspiracy to kidnap Tostado for ransom (count 8) and kidnapping Tostado for ransom
(count 9).
42
those crimes. Conceding there is "ample, independent evidence of [his] participation in
the Tostado kidnapping," Beritan contends that "one cannot take the independent Tostado
evidence as connecting [him]" to the crimes committed against Martinez, Lozano, Uribe
and Leon. Acknowledging that Uribe and Leon were murdered at the Garber Avenue
residence after they were held captive there, Beritan further contends there is no
independent evidence to show he was living at the Garber Avenue residence during the
commission of those crimes and, even if he was living there, "corroboration based only
on presence at the scene and opportunity to commit a crime does not satisfy the
requirements of section 1111."
These contentions are unavailing. As already discussed, corroborative evidence
may be circumstantial, of little weight by itself, and related merely to one part of an
accomplice's testimony. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186.)
Here, in his accomplice testimony, Moreno indicated that Los Palillos rented "safe
houses" in the San Diego area to facilitate the kidnappings and other crimes they planned
to commit. He testified that the Garber Avenue residence was one of those safe houses.
Moreno further testified that he spoke to Beritan and a few other members of Los Palillos
about making money by kidnapping AFO members for ransom and that Beritan moved
into the Garber Avenue safe house, as did Moreno's brother, Carlos Pena. In his own
accomplice testimony, Pena similarly testified that Los Palillos rented the Garber Avenue
safe house in October 2006, and Pena lived there with Asere (Beritan) from that time
until Los Palillos abandoned that safe house.
43
Independent circumstantial evidence, which Beritan disregards, corroborates
Moreno's and Pena's testimony that he was living at the Garber Avenue safe house during
the commission of the crimes. Nwagbo, the owner of the Garber Avenue residence,
testified that in mid-October 2006 a man he knew as Ignacio Peredo signed a one-year
agreement to rent the property. When the rent payments stopped, Nwagbo called Peredo,
who sent a money order by overnight mail. Agent Giboney testified that Nwagbo
showed him the UPS next-day airshipping envelope that was used to send the money
order, and the return address was in the name of a person named Onel Jimenez. A
paralegal working for the district attorney's office testified she subpoenaed the UPS
records, and the receipt for the envelope shipped to Nwagbo showed it was sent by Onel
Jimenez. Agent Giboney testified that Beritan was a member of Los Palillos, and both
Agent Giboney and Agent Kameron Korte testified that Onel Jimenez was an alias that
Beritan used.
The foregoing circumstantial evidence, which corroborates Moreno's and Pena's
accomplice testimony, tends to connect Beritan to the commission of the crimes by
establishing that he used his alias, Onel Jimenez, to rent the Garber Avenue safe house,
and that he resided there during the commission of the crimes.
Independent circumstantial evidence also corroborates Moreno's and Pena's
testimony that Beritan guarded Uribe, Leon, and other victims at Los Palillos's safe
houses. Moreno testified that he and Beritan guarded Vasquez ("Kilino") at the Garber
Avenue safe house while he was held captive there, that he (Moreno) and other members
of Los Palillos openly communicated to one another during that time and referred to
44
Beritan by his nicknames "Asere," "Chino," "Cubano," and "Cuba," and that Beritan was
the only one there who was Cuban. Moreno also testified that he and Beritan guarded
another victim, Balitas, while he was held captive at the Garber Avenue safe house;
Beritan was still living there when Uribe and Leon were later kidnapped and held captive
there, and Beritan helped to guard them before they were strangled. Pena similarly
testified that Beritan helped to guard Balitas, Vasquez, Uribe, and Leon while they were
held captive at the Garber Avenue safe house.
Independent circumstantial evidence corroborates the foregoing accomplice
testimony that Beritan guarded Uribe and Leon. As noted, Moreno testified that when he
and Beritan guarded Vasquez at the Garber Avenue safe house, he (Moreno) and other
members of Los Palillos openly referred to Beritan by his various nicknames, including
"Asere" and "Cubano." Vasquez corroborated this testimony by testifying that one of the
men who guarded him one was a foreigner with a Cuban or Venezuelan accent, and
Vasquez knew him as "El Cubano." Tostado also gave corroborative testimony. He
testified that he learned the nicknames of three of the kidnappers who held him captive at
the Point Dume Court safe house, and one of them was nicknamed "Asere" (Beritan).
Agent Giboney independently testified that Beritan's nicknames were "Chino" and
"Asere." At trial, Tostado identified Beritan as "Asere."
In this regard, the Attorney General correctly argues that "evidence establishing
that a defendant committed crimes similar to the one at issue can corroborate an
accomplice's testimony." (People v. Hannie (1962) 202 Cal.App.2d 462, 466 ["[T]he
accomplice in this case was corroborated by evidence establishing a prior burglary
45
committed under circumstances similar to the burglary here in question."].) Here, the
independent testimony of Vasquez and Tostado establishing that Beritan had assisted
Los Palillos in holding them and Balitas captive corroborates Moreno's and Pena's
accomplice testimony that he also assisted in holding Uribe and Leon captive before they
were murdered. (Ibid.)
Pena testified that Beritan helped to guard Tostado at the Point Dume Court safe
house. Beritan does not dispute that Tostado corroborated this testimony by testifying
that he learned the nicknames of three of the kidnappers.
For the foregoing reasons, we conclude that sufficient evidence independent of
Moreno's and Pena's accomplice testimony tends to connect Beritan to the Uribe/Leon
crimes (counts 4 through 7) such that we may conclude the jury reasonably could have
been satisfied that their accomplice testimony about Beritan's participation in those
crimes was truthful.
We also conclude sufficient independent evidence tends to connect Beritan to the
attempted kidnapping of Martinez (count 1) and the murder of Lozano (count 3) such that
we may conclude the jury reasonably could have been satisfied that Moreno's accomplice
testimony about Beritan's participation in those crimes was truthful. Regarding the
attempted kidnapping of Martinez, Moreno and Pena testified that they, Beritan, and
other Los Palillos members met at the Garber Avenue safe house to plan the kidnapping
for ransom of Martinez. Moreno testified that the Garber Avenue safe house was still
leased by Los Palillos at that time, Beritan was living there, and Martinez was going to be
held captive there following his abduction. Moreno also testified that the plan was to
46
have Arvizu lure Martinez, who was an independent drug-trafficker, to the Briarwood
apartment complex on the pretext that a buyer of drugs would be there for a drug sale
transaction, and some of the members of Los Palillos dressed as police officers would
then "arrest" Martinez and take him to the Garber Avenue safe house. Moreno further
testified Beritan would be nearby in a car acting as a lookout.
Moreno's testimony that Martinez was going to be held captive at the Garber
Avenue safe house after being lured to, and "arrested" at, the Briarwood apartment
complex following his abduction is corroborated by the independent testimony of
Lourdes Hernandez, who testified that Arvizu drove her to the Briarwood apartment
complex in his Ridgeline truck after telling her they were going to pick up cocaine and
that Martinez followed them there in his Sequoia. This testimony corroborates Moreno's
accomplice testimony that, as part of the kidnapping plan devised at the Garber Avenue
safe house, Arvizu would lure Martinez to the Briarwood apartment complex.
Lourdes also testified that, after Martinez escaped from the attempted "arrest" and
drove away, she and Arvizu picked up the men wearing police vests who had assaulted
Martinez and drove them to a home in the Chula Vista area. At trial, Lourdes identified
the Garber Avenue safe house as the home to which they drove after the incident.
In addition, as already discussed, substantial evidence apart from Moreno's and
Pena's accomplice testimony shows that Beritan had rented the Garber Avenue safe house
on behalf of Los Palillos, he lived there, and he guarded other victims there.
Although the foregoing independent evidence only provides what Beritan refers to
as a "thin circumstantial nexus," it tends to connect Beritan to the commission of the
47
attempted kidnapping of Martinez such that we may conclude the jury reasonably could
have been satisfied that Moreno's accomplice testimony about Beritan's participation in
that crime was truthful. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186 ["[T]he
corroborating evidence may be circumstantial, of little weight by itself, and related
merely to one part of the accomplice's testimony."].)
Last, the same independent evidence showing that Beritan rented the Garber
Avenue safe house on behalf of Los Palillos, lived there, and guarded other victims there,
also tends to connect him to the murder of Lozano, who Moreno testified was strangled to
death at the Garber Avenue safe house while Beritan and other Los Palillos members
were kicking him.
For all of the foregoing reasons, we affirm Beritan's convictions of counts 1, 3,
and 4 through 7.
III. DEFENDANTS' REQUESTS FOR CORRECTION OF
ERRORS IN THEIR ABSTRACTS OF JUDGMENT
A. Error in Both Abstracts of Judgment Regarding Count 6
Asserting that their abstracts of judgment incorrectly reflect that their count 6
convictions were for kidnapping for ransom with bodily harm, rather than for simple
kidnapping, Valencia and Beritan request that the errors be corrected. The Attorney
General concedes the errors and does not oppose defendants' requests. We agree the
abstracts of judgment must be corrected.
With respect to count 6, the jury found Valencia and Beritan guilty of the lesser
included offense of simple kidnapping of Leon in violation of section 207, subdivision
48
(a). Their abstracts of judgment correctly reflect that they were convicted of a violation
of that section. However, Valencia's abstract of judgment incorrectly identifies his count
6 offense as "kidnap ransom, bodily harm," and Beritan's abstract of judgment similarly
identifies his count 6 offense as "kidnap, ransom bodily harm."
Beritan correctly points out that kidnapping for ransom with bodily harm is a
violation of section 209, subdivision (a), not of section 207, subdivision (a). Thus, we
conclude defendants' abstracts of judgments should be corrected to reflect that their count
6 convictions (§ 207, subd. (a)) were for the lesser included offense of simple
kidnapping, not for kidnapping for ransom with bodily harm.
B. Duplicative Count 7 Multiple-murder Special Circumstance Enhancement
(Valencia's Abstract of Judgment)
Valencia also claims the court erroneously imposed two prison terms of life
without the possibility of parole (LWOP)─one for each of the murders charged in counts
5 and 7 of which he was convicted─based on the jury's true finding on the multiple-
murder special circumstance allegation under section 190.2, subdivision (a)(3) (hereafter
referred to as section 190.2(a)(3)).10 Citing People v. Danks (2004) 32 Cal.4th 269 and
People v. Diaz (1992) 3 Cal.4th 495, he argues the court was authorized to impose only
one LWOP sentence enhancement for the multiple-murder special circumstance.
10 Section 190.2(a)(3) provides: "(a) The penalty for a defendant who is found guilty
of murder in the first degree is death or imprisonment in the state prison for life without
the possibility of parole if one or more of the following special circumstances has been
found under Section 190.4 to be true: [¶] . . . [¶] (3) The defendant, in this proceeding,
has been convicted of more than one offense of murder in the first or second degree."
49
Valencia acknowledges, however, that the court was authorized to impose consecutive
LWOP prison terms on counts 5 and 7 because one of those LWOP enhancements was
authorized based on the jury's true findings on the gang-murder special circumstance
allegations under section 190.2, subdivision (a)(22) (hereafter referred to as section
190.2(a)(22)).11 He asserts the appropriate remedy is to allow his count 7 LWOP
sentence to remain "in light of the remaining gang special circumstance finding" under
section 190.2(a)(22), and to amend his abstract of judgment to delete as to count 7 the
reference to an enhancement under section 190.2(a)(3).
The Attorney General agrees, noting in the petition for rehearing that "a properly
imposed gang[-]murder special circumstance applies to count 7," and thus "Valencia's
sentence on that count remains life without the possibility of parole."
1. Background
The prosecution charged Valencia with a multiple-murder special circumstance,
alleging that "in this proceeding [he] has been convicted of more than one offense of
murder in the first or second degree, within the meaning of Penal Code section
190.2(a)(3)." As to each of the first degree murders charged in counts 5 and 7, the
prosecution also charged Valencia with a gang-murder special circumstance (§
11 Section 190.2(a)(22) provides: "(a) The penalty for a defendant who is found
guilty of murder in the first degree is death or imprisonment in the state prison for life
without the possibility of parole if one or more of the following special circumstances has
been found under Section 190.4 to be true: [¶] . . . [¶] (22) The defendant intentionally
killed the victim while the defendant was an active participant in a criminal street gang,
as defined in subdivision (f) of Section 186.22, and the murder was carried out to further
the activities of the criminal street gang.
50
190.2(a)(22)), alleging he committed the murder while he was an active participant in a
criminal street gang and he carried out the murder to further the activities of the gang.
The jury found Valencia guilty of counts 5 and 7, and found the multiple-murder special
circumstance allegation and the gang-murder special circumstance allegations to be true.
For Valencia's count 5 conviction, the court sentenced him to life without the
possibility of parole, stating: "For Count 5, the murder of Mr. Uribe with the findings of
active gang participation, multiple murders, and the gang allegation, probation is denied.
You're committed to the Department of Corrections and Rehabilitation[] for life without
the possibility of parole." (Italics added.)
For Valencia's count 7 conviction, the court sentenced him to another and
consecutive term of life without the possibility of parole, stating: "In light of Count 7,
which is the murder of Mr. Leon with the finding of the active gang participation, the
multiple murders, and the gang allegation. In that case, then, you're committed to the
Department of Corrections and Rehabilitation for life without the possibility of parole to
be served consecutive[ly] or in addition to the life without the possibility of parole
imposed in Count 5." (Italics added.)
a. Abstract of judgment
As pertinent here, Valencia's indeterminate abstract of judgment reflects that the
court sentenced him to an LWOP prison term on count 5 and to a consecutive LWOP
prison term on count 7. The abstract of judgment also reflects that each of the LWOP
sentences was an enhancement imposed as a result of the true findings on the gang-
murder special circumstance allegations (citing "PC190.2(a)(22)" as to both count 5 and
51
count 7) and the true finding on the multiple-murder special circumstance allegation
(citing "PC190.2(a)(3)" as to both counts).
2. Analysis
In People v. Danks, supra, 32 Cal.4th at page 315, the California Supreme Court
explained that "section 190.2, subdivision (a)(3) provides as a special circumstance that
'[t]he defendant, in this proceeding, has been convicted of more than one offense of
murder in the first or second degree.' Section 190.2, subdivision (a)(3) does not permit a
separate multiple-murder special circumstance to be attached to each murder conviction
sustained in the capital case because such duplicative use of multiple-murder special
circumstances 'artificially inflates the seriousness of the defendant's conduct.'" (Italics
added.)
In People v. Diaz, supra, 3 Cal.4th at page 565, the Supreme Court also explained
that "[w]hen a defendant kills more than one person, the prosecution should allege only
one multiple-murder special circumstance; to charge more than one such special
circumstance would improperly inflate the seriousness of the defendant's conduct." In
Diaz, after the defendant waived his right to a jury trial, the trial court convicted him of
12 counts of first degree murder and found to be true 12 multiple-murder special-
circumstance allegations (§ 190.2, subd. (a)(3)). (Diaz, at p. 517.) The Diaz court agreed
with the defendant's argument that 11 of the 12 multiple-murder special circumstances
should be stricken as duplicative. (Id. at p. 565.)
Here, the court erroneously imposed two LWOP sentences─one on count 5 and a
second on count 7─based on the multiple-murder special circumstance. The court was
52
authorized to impose only one LWOP sentence enhancement based on that special
circumstance. (People v. Danks, supra, 32 Cal.4th at p. 315; People v. Diaz, supra, 3
Cal.4th at p. 565.) On rehearing, we agree with the parties that the appropriate
disposition as to Valencia regarding count 7 is to affirm his LWOP sentence in light of
the properly imposed count 7 gang-murder special circumstance, and order that his
abstract of judgment be amended to delete as to count 7 the reference to an enhancement
under section 190.2(a)(3).
C. Gang Enhancements
Last, Valencia contends his abstract of judgment incorrectly indicates he received
a gang-enhancement sentence of life without the possibility of parole for each of the
jury's true findings on the gang enhancement allegations (§ 186.22, subd. (b)(1)) attached
to counts 5 (murder of Uribe) and 7 (murder of Leon). Citing People v. Lopez (2005) 34
Cal.4th 1002 (Lopez), Valencia asserts that because he received a sentence of life without
the possibility of parole for each of his count 5 and count 7 gang-related murder
convictions, "the sentence provided by law for [each] gang enhancement is generally a
minimum parole eligibility term of 15 years." Thus, he argues, the count 5 and count 7
LWOP gang enhancements reflected in his abstract of judgment are unauthorized.
Beritan similarly argues that because he received sentences of life without the
possibility of parole for each of his three gang-related murder convictions (counts 3, 5 &
7) and each of his two gang-related kidnapping-for-ransom-with-bodily-injury
convictions (counts 4 & 9), the LWOP gang enhancements for those five counts (3, 4, 5,
7 & 9) reflected in his abstract of judgment are unauthorized.
53
The Attorney General concurs in Valencia's and Beritan's arguments, and, citing
section 186.22, subdivision (b)(5) (hereafter section 186.22(b)(5)), concedes that "[t]he
appropriate sentence for the gang enhancements on all of these counts is life with a
minimum parole eligibility [sic] after 15 years."
We accept the Attorney General's concession that defendants' abstracts of
judgment should be corrected to reflect the imposition of a gang-enhancement consisting
of a 15-year minimum parole eligibility term under 186.22(b)(5), rather than an LWOP
term, for each gang enhancement. In Lopez, supra, 34 Cal.4th at page 1004, the
California Supreme Court explained that "section 186.22, subdivision (b) establishes
alternative methods for punishing felons whose crimes were committed for the benefit of
a criminal street gang." Section 186.22(b)(5), which is applicable here, provides in part
that "any person who violates this subdivision in the commission of a felony punishable
by imprisonment in the state prison for life shall not be paroled until a minimum of 15
calendar years have been served." (Italics added.) Thus, under section 186.22(b)(5),
gang-related felony convictions punishable by imprisonment in the state prison for life
carry a 15-year minimum parole eligibility term. (§ 186.22(b)(5); Lopez, supra, 34
Cal.4th at p. 1004.)
1. Valencia
Here, the court sentenced Valencia to consecutive LWOP prison terms for his
count 5 and count 7 murder convictions. The jury found Valencia committed each of
those murders for the benefit of a criminal street gang within the meaning of section
186.22, subd. (b)(1). Thus, under section 186.22(b)(5), each of Valencia's gang-related
54
murder convictions carries a gang enhancement consisting of a 15-year minimum parole
eligibility term. (Lopez, supra, 34 Cal.4th at p. 1004.)
However, Valencia's abstract of judgment currently reflects that each of his count
5 and count 7 gang enhancements consists of an unauthorized LWOP term. Thus,
Valencia's abstract of judgment should be corrected by deleting the count 5 and count 7
gang-enhancement LWOP terms and replacing those unauthorized terms with 15-year
minimum parole eligibility terms under section 186.22(b)(5). (Lopez, supra, 34 Cal.4th
at p. 1004.) We note that these corrections, although required by the provisions of
section 186.22(b)(5), appear to be of academic importance only because the section
186.22(b)(5) gang enhancements "enhance" the LWOP sentences imposed for Valencia's
count 5 and count 7 murder convictions. By definition, an LWOP sentence means the
defendant is not eligible for parole and thus imposition of a 15-year minimum parole
eligibility term as a gang "enhancement" under section 186.22(b)(5) is of no
consequence.
2. Beritan
The court also sentenced Beritan to consecutive LWOP prison terms for his
convictions of counts 3, 4, 5, 7, and 9. The jury found Beritan committed each of those
felonies for the benefit of a criminal street gang within the meaning of section 186.22,
subd. (b)(1). Thus, under section 186.22(b)(5), each of Beritan's gang-related convictions
carries a gang enhancement consisting of a 15-year minimum parole eligibility term.
(Lopez, supra, 34 Cal.4th at p. 1004.)
55
However, Beritan's abstract of judgment currently reflects that each of his gang
enhancements consists of an unauthorized LWOP term. Thus, Beritan's abstract of
judgment should be corrected by deleting the gang-enhancement LWOP terms (in counts
3, 4, 5, 7 & 9) and replacing those unauthorized terms with 15-year minimum parole
eligibility terms under section 186.22(b)(5). (Lopez, supra, 34 Cal.4th at p. 1004.)
DISPOSITION
Valencia's and Beritan's judgments are affirmed, including Valencia's count 7
prison sentence of life without the possibility of parole. The trial court is directed (1) to
correct Valencia's and Beritan's abstracts of judgment to reflect that their count 6
convictions (§ 207, subd. (a)) were for the lesser included offense of simple kidnapping,
not for kidnapping for ransom with bodily harm; (2) to amend Valencia's abstract of
judgment by deleting as to count 7 the reference to an enhancement under section
190.2(a)(3); (3) to correct Valencia's abstract of judgment by deleting the count 5 and
count 7 gang-enhancement LWOP terms and replacing those terms with 15-year
minimum parole eligibility terms under section 186.22(b)(5); and (4) to correct Beritan's
abstract of judgment by deleting the gang-enhancement LWOP terms as to counts 3, 4, 5,
7, and 9 and replacing those terms with 15-year minimum parole
eligibility terms under section 186.22(b)(5). The superior court is also directed to
56
forward certified copies of the corrected abstracts of judgment to the Department of
Corrections and Rehabilitation.
NARES, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
57